Vancouver, British Columbia, March 15, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
DANIEL HERNANDO CAICEDO MOLINA
BEATRIZ EUGENIA CARMONA DELGADO
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), for judicial review of a decision by the Immigration Refugee Board (Board), dated August 9, 2006, wherein the Board held that the applicants, Mr. Daniel Hernando Caicedo Molina and Ms. Beatriz Eugenia Carmona Delgado, were not Convention refugees pursuant to s. 96 of the Act and were not persons in need of protection pursuant to s. 97 of the Act.
I. Background
[2] Both applicants are citizens of Colombia who claim a well-founded fear of persecution due to their perceived political opinion. Mr. Molina and Ms. Delgado fled Colombia and sought protection in Canada as a result of their relationship with the common-law spouse of Mr. Molina’s sister – a Mr. Traslavina. Mr. Traslavina is in a leadership position with the Autodefensas Unidas de Colombia (AUC) organization.
[3] Mr. Traslavina does not own a vehicle, so Mr. Molina would often drive him around Bogota in order to run errands. On one occasion, in mid-2003, while on an outing, Mr Molina, Mr. Molina’s sister and Mr. Traslavina were approaching an intersection where some men appeared to be waiting with the intent of ambushing them. Mr. Traslavina, who was driving, asked Mr. Molina’s sister to “take out” a firearm, which she did. Mr. Molina also made a motion as if he were reaching under the car seat in order to grab a weapon. The alleged assailants fled. Mr. Traslavina informed Mr. Molina that he believed the men to be guerrillas intent on doing him harm due to his political activities. The applicants did not report this incident to the police as they had no confidence in the police to conduct an investigation.
[4] Subsequent to this incident, the applicants noticed suspicious vehicles parked in front of their residence that caused them psychological anguish and stress. Also, the applicants believed that they were being followed when they were out in their car, possibly by persons trying to establish which routes they travelled in order to set up another ambush. However, the applicants did not flee to Canada until June 6, 2005, approximately two years after the attempted ambush.
[5] The applicants argue they cannot return to Colombia because of their connection to Mr. Traslavina, who continues to reside in Colombia with Mr. Molina’s sister. The applicants remain in contact with Mr. Traslavina, who has not been physically attacked but does change his residence frequently to maintain his safety.
II. Board's Decision
[6] The Board found the applicants “forthright and trustworthy in their written and oral evidence.” The Board also accepted that Mr. Traslavina was a significant political figure who had made the news regarding his arrest for kidnapping, for which he was later acquitted. The newspapers referred to Mr. Traslavina as a “para-military head” and the Board accepted the relationship of the applicants to Mr. Traslavina was as they testified.
[7] The Board did, however, take issue with the applicants remaining in Colombia for two years after the incident in the car. Further, the applicants testified that the catalyst in coming to Canada was the discovery that Ms. Delgado was pregnant and now they had to protect their child, in addition to themselves. The Board placed considerable weight on the fact that the applicants were not confronted in a face-to-face manner, other than the mid-2003 incident, where, other than being “shaken up” no one was harmed.
[8] The Board found that the presumption of state protection had not been rebutted in this case as the applicants had failed to establish clear and convincing proof that Colombia was unable to provide adequate protection. The Board relied on several pieces of documentary evidence that showed that the Colombian government was making significant efforts to provide state protection from common agents of persecution. The Board did acknowledge that these efforts were yet to provide comprehensive protection and “serious problems continue to exist” with respect to the government being able to effectively decrease violence from guerrilla groups.
[9] The Board determined that, despite an imperfect system, the applicants had an obligation to at least attempt to seek state protection, particularly in light of recent efforts on the part of the Colombian government to combat guerrillas. The Board did conclude, however, “…it is doubtful that the police would have followed up on a report of a possible threat from individuals in a stopped vehicle who appeared to be going to attack”.
[10] Further, with respect to the subsequent sightings of “suspicious vehicles”, the Board found there were no efforts made by the applicants to contact state authorities and complain or request an investigation. In fact, it appears the applicants did nothing of any consequence concerning the "suspicious vehicles" although, according to the male applicant's Personal Information Form, the police were contacted.
[11] The Board did suggest that there exists an internal flight alternative (IFA) to Cali, Colombia. Mr. Molina had previously lived in Cali, which was an eight-hour drive from Bogota. The Board rejected the argument that the applicants would be recognized by guerrilla groups if they moved to Cali, as Mr. Traslavina, who is surely at more risk than the applicants, remains in Colombia and remains unharmed.
[12] The Board concluded that there was not a well-founded fear of persecution or that the applicants were persons in need of protection, or that their removal to Colombia would result in a risk to life, or a risk of cruel and unusual treatment or punishment.
III. Legislative Scheme
[13] Sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c 27:
IV. Issues
[14] The issues are as follows:
1. Did the Board err by stating that the applicants had an obligation to approach the state for protection?
2. Did the Board err in misconstruing the facts relating to the applicants' objective fear?
3. Did the Board err by implying that the applicants have an internal flight alternative?
4. Did the Board err when, after being sent a letter by the Respondent's counsel, it concluded it erred in its decision as a result of a "clerical error"?
V. Analysis
A. Issue 1
(1) Standard of review for state protection
[15] Fernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1132, is of assistance when considering the level of deference required for a determination if there is state protection available. In Fernandez, at paragraphs 11-12, the Court determined:
In order to reach a conclusion with respect to the adequacy of state protection, the RPD is obliged to make certain findings of fact. Those findings of fact can only be set aside by this Court, if made in a perverse or capricious manner, or without regard to the material before the tribunal. See: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39, 2005 SCC 40 at paragraph 38.
Once those findings of fact are made, they must be assessed against the legal test articulated by the Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724, namely do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption of state protection? This is a question of mixed fact and law. On the basis of the pragmatic and functional analysis conducted by my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard of review of the decision as to the adequacy of state protection is reasonableness simpliciter.
(2) Decision on availability of state protection
[16] It is well-settled that state protection is presumed, absent “clear and convincing” evidence of the state’s inability to protect. See: Ward, above. The applicants argue that there is no need to seek protection when it will not be given due to corruption within the government. The applicants specifically point out that even the Board, in their reasons, acknowledges that “it is doubtful the police would have responded,” and note that the Board also determined “I do not find that there is clear and convincing proof of the state’s ability to provide protection to them”. The applicants therefore argue the Board’s conclusions on this issue are not logical. While I agree the Board said these passages, I cannot agree they support the applicants on these facts.
[17] First, I agree with the respondent that where the reasons read “I do not find that there is clear and convincing proof of the state’s ability to provide protection to them”, the Board, having read the passage in its context, clearly meant to say “I do not find that there is clear and convincing proof of the state’s inability to provide protection to them.” It is trite law that a mere “type-o” does not constitute a reviewable error.[Emphasis added]
[18] Justice Russell in Petrova v. Canada (Minister of Citizenship and Immigration) (2004), 251 F.T.R. 43, 2004 FC 506, addressed the implications of a typographical error in a decision-maker's reasons under review by the Court. At paragraph 51 of Petrova, above, Justice Russell writes: “[w]hen a mistake is typographical in nature, the Court should not interfere with the decision, especially if the error does not appear to have been a misunderstanding of the evidence.” This proposition was recently followed in a decision of Mr. Justice Noël in Lu v. Minister of Citizenship and Immigration, 2007 FC 159.
[19] I agree with the applicants that the Board found that reporting to the police would have been futile with respect to the mid-2003 incident. However, I agree for different reasons. The applicants argue they did not seek police assistance as the police are corrupt and cannot be trusted. However, I am of the opinion the Board did not believe that the police would respond to this incident as the threat was that people “appeared to be going to attack” - but did not - after Mr. Molina’s sister aimed a firearm at them, therefore the police would not be interested in hearing about the incident as no one was harmed. The Board was not saying that the Colombian police were corrupt and would never consider providing state protection.
[20] Additionally, the Board expressed concerns that in the two years, while the applicants remained in Colombia and were being followed by suspicious vehicles, they did not report these events to the police. On page 6 of the Board’s decision, the Board found “…at no time did they make any complaints to the local police about these incidents.” This is where I take issue with the Board’s findings.
[21] The applicants in their Personal Information form (PIF) clearly state that:
We would call the police to report suspicious people outside the apartment building, when the police got there, sometimes the people had already left and other times, the police checked them and they left, and other times, they didn’t check them, they would only speak to the driver and then he left.
[22] Therefore, the Board is clearly in error by finding, and placing weight on, the applicants not contacting the police with respect to the “suspicious vehicles.” Given that the applicants were found credible, the Board must by extension accept that contacting the police did occur. While this passage in the PIF was not addressed by either counsel in written argument, I am not prepared to speculate on what conclusion the Board would have reached, had the Board properly considered the evidence. It could very well be that the Board would have found that the applicants had rebutted the presumption of state protection with the documentary evidence when combined with the PIF testimony. Therefore, the Board’s finding on state protection does not withstand a somewhat probing analysis.
[23] The applicants also take issue with the Board's failure to properly consider the documentary evidence regarding state protection in Colombia. I decline to address these arguments, as, for the above reasons, the Board’s findings on the availability of state protection ignored the evidence within the PIF and are clearly unreasonable.
B. Issue 2
(1) Standard of review for determining the facts supporting an objective fear
[24] It is well-settled that findings of fact by the Board are reviewed on the standard of patent unreasonableness. The case in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52, is clear that:
… a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed [page270] that no amount of curial deference can justify letting it stand.
(2) Decision on the determination of well-founded fear
[25] It is clear that a well-founded fear requires both a subjective fear and an objective fear. See: Ward, above, at paragraph 64. The Board accepted that the applicants have a subjective fear of persecution in Colombia. At issue, therefore, is the Board’s determination that there was not an objective fear.
[26] The applicants argue that the forthcoming child was only a component of why they fled Colombia and the Board placed too much weight on this factor. Additionally, the applicants argue that more weight should have been placed on the documentary evidence and the testimony as to how the applicants had to alter their lifestyle to avoid being tracked by guerillas while they lived in Colombia. In my opinion, the Board’s findings on these issues are reasonable and the applicants are simply asking the Court to re-weigh the evidence, which is not the role of the Court in a judicial review.
[27] However, as with the first issue, the Board ignored evidence that the applicants attempted to seek protection from the police. Had the Board considered this, it would have served to support the objective element of a well-founded fear. Again, as the applicants were found credible, it is possible this factor would have swayed the Board. In conclusion, I am of the opinion that the Board acted in a patently unreasonable manner in their fact-finding on this issue and therefore the determinations that follow are patently unreasonable.
C. Issue 3
(1) Decision on the Internal Flight Alternative
[28] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), is clear that if a claimant is able to seek refuge in their country of origin they are not Convention refugees. If an IFA exists, then the claimant, by definition, does not have a well-founded fear of persecution. See: Kanagaratnam v. Canada (Minister of Employment and Immigration) (1996), 194 N.R. 46, 36 Imm. L.R. (2d) 180 (C.A.).
[29] The Board found that Mr. Traslavina and Mr. Molina’s sister continue to reside in Colombia and have not been physically harmed. However, in the present case, I agree with the applicants that it appears the Board did not fully appreciate the testimony as to the precautions Mr. Traslavina was undertaking to continue to live in Colombia. It does appear, to me at least, that there is some degree of hiding on the part of Mr. Traslavina and Mr. Molina’s sister. The Board does not discuss whether or not the IFA is therefore reasonable in these circumstances, which they must as set out in Rasaratnam, above and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). Also, lacking in the Board's IFA analysis is again the evidence regarding contacting the police addressed above, which, if it were not ignored, could have factored into determining if the IFA was reasonable or not given the applicants' circumstances.
[30] Although I am not prepared to speculate on the future finding of an IFA in a subsequent re-determination, the Board’s decision, as it presently reads, cannot support a finding that there was an IFA.
D. Issue 4
[31] In that I have allowed the present judicial review, I need not address the issue of the Respondent's letter to the Board on the issue of the clerical error.
[32] For the above reasons, I would allow this judicial review.
JUDGMENT
THIS COURT ADJUDGES that the application for judicial review is allowed. This matter is to be returned to a new Board for a rehearing. No question was submitted for certification and none will be certified.
"Max M. Teitelbaum"
Deputy Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4741-06
STYLE OF CAUSE: DANIEL HERNANDO CAICEDO MOLINA et al.
v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 14, 2007
REASONS FOR JUDGMENT AND JUDGMENT: TEITELBAUM D.J.
APPEARANCES:
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Ms. Naomi Minwalla
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Ms. Banafsheh Sokhansanj
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SOLICITORS OF RECORD:
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Naomi Minwalla Barrister & Solicitor Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada
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